Mst. FARIDA and 2 others vs REHMATULLAH and another

1. ' MUHAMMAD AFZAL ZULLAH, C.J.--This appeal through leave of the Court is directed against the judgment dated 27-4-1983 of the Peshawar High Court; whereby while disposing of the appellants'

2. Civil Revision in a case of inheritance they were granted only partial relief, vis-a-vis, one of their brothers' (respondent herein) share on his concession, while the remaining relief was declined. The leave grant order reads as follows:-- "The petitioners are the daughters and the respondents the sons of Nadir Khan who died in 1972-73.

3. The exact year of his death is disputed but admittedly he had died much before the extension of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, to this area on 15-1-1976. He left behind 26 Jaribs of land. The petitioners brought a suit in 1978 against the respondents for a declaration that they (petitioners) are owners of 6/14th share in the land and that the defendants had no right in the said share. The petitioners' suit was dismissed and so was their appeal, where after they came in revision before the Peshawar High Court, which was accepted only qua the share of Rehmatullah respondent who had admitted the petitioners' claim before the trial Court.

4. The High Court maintained the dismissal of the suit otherwise, upon the view that section 2 of the Act not being retrospective, the petitioners could not claim a share under the Muslim Law in the estate of their deceased father who had died during custom.

5. The question arising in this case, that is, whether the Act, in its application cannot be given retrospectively, needs to be examined in the light of this Court's judgment in Muzaffar Khan v.

6. Roshan Jan PLD 1984 SC 394. Leave is accordingly granted."

7. ' The respondents' side has chosen to stay away and they are being proceeded ex parte. We with the help of the learned counsel have carefully considered the law laid down by this Court in the case of Muzaffar Khan noted in leave grant order. It is true that the Government of N.-W.F.P. Did not take any formal specific steps to enact a law in pursuance of the decision of the Shariat Appellate Bench of this Court in the Federation of Pakistan v. Muhammad Siddique and another PLD 1983 Supreme Court 273; as it was done in the Punjab. There the relevant law was enacted in the form of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983. It was held in the case of Muzaffar Khan that it would not make any difference. In so far as the question of retrospectively is concerned the position both in Punjab and N.-W.F.P. In this behalf would not be dissimilar. It was also held that as soon as the decision of this Court in its Shariat Appellate Bench took effect as from 30th June, 1983, the words "subject to the provisions of any enactment for the time being in force" in section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, "ceased to have effect". As a result amongst others one consequence visualised and held in the case of Muzaffar Khan was that "the N.-W.F.P. Act of 1935" is to be given restrospective effect and that whenever a dispute comes before a Court of law with regard to succession to the estate of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935. Accordingly, in this case the fact that the Act of 1962 was not in force in the area concerned on 15-1-1976 would not make any difference because as observed above the Islamic dispensation contained therein read with the same dispensation contained in 1935 Act had taken over retrospectivity even prior to 15-1-1976 and even before the 1962 Act was formally applied to the area concerned. To what extent the law would be retrospective, as noticed above, it was held that the same would be definitely beyond 1935. Farthest limit we need not go into because in the present case Nadir Khan the last male-holder admittedly died in 1972 or 1973.

8. Therefore, the appellants being his 'daughters would get their share in his inheritance in accordance with Islamic Law. This appeal thus is allowed. The remaining share in addition to what was granted to them by the High Court shall now be allowed to them and the necessary changes would be made in all the relevant records including the record of rights.